Johnson v. Williams

48 Vt. 565 | Vt. | 1876

The opinion of the court was delivered by

Ross, J.

I. The motion to dismiss was properly overruled. There are cases that are appealable in which neither the plaintiff’s specification nor the ad damnum in his writ, are above ten dollars. The defendant’s plea before the justice may be, and frequently is, oral. The copies of appeal, ordinarily, set forth only so much of the pleadings as were reduced to writing. Hence, an appeal may be properly allowed, where the right to it arises out of the character of the defendant’s plea, in cases in which the appeal copies do not disclose that right. It does not therefore follow, that the defendant has the right to have an appeal dismissed as improperly allowed, because the appeal copies do not disclose such right. The presumption is, prima facie, in. favor of the regularity of judicial proceedings. Hence, where a justice allows an appeal, its regularity is presumed until the contrary is shown. The motion to dismiss only reached such defects as were apparent upon the face of the appeal copies. As the right to an appeal might exist for aught that appeared upon the face of the appeal copies, the County Court were to presume that right existed, and was properly allowed by the justice to the defendant, until the plaintiff, by a proper plea, brought upon the record such facts as, taken in connection with the facts disclosed by the appeal copies, clearly negatived the defendant’s right to an appeal. If this were not so, the court might frequently dismiss an appeal where the right clearly existed. The case at bar is, on its facts, clearly appealable, but that right, under the statute, arises out of the character of the defence. There was no error in overruling the motion.

II. The plaintiff claimed, the defendant not having pleaded or relied upon in his notice the proceedings before the justice court as an estoppel, that the record of these proceedings, though it included the subject-matter of this suit, should not be held to conclude the plaintiff, but that he should be allowed to give evidence whether the property named in the declaration was kept for sale, gift, or distribution contrary to the statute ; that the property named was not fit to drink, and was valuable and intended only for vinegar; that this was known to the defendant when he seized it; and that he had no good reason to believe that it was kept for sale contrary to law. It is true that where it is necessary to plead matter in estoppel, to give it that effect, it must ordinarily be set up and counted upon as an estoppel. When brought upon the record by a notice instead of a formal plea, the substance of a good plea must be set forth. Counting upon matter as an estoppel in a plea is more than form merely. It is so far of the substance of the plea, that without it the plea would not be good. Hence, if the defendant must rely upon his notice, to have the record of the proceedings in the justice court admissible in evidence as an estoppel, his notice must be held defective in not having set forth that record as an estoppel. The question therefore arises, whether the defendant has to rely upon his notice as an estoppel, for the admission in evidence and effect of the record of the proceedings before the justice, wherein it was adjudicated that.the barrel of cider, or vinegar, for which recovery is sought, was forfeited and ordered to be destroyed. The action is trover. The conversion of the property by the defendant is the gist of the action. The plea, not guilty, put in issue the conversion and the lawfulness of it. Under this plea alone, probably, but certainly in connection with the notice, the defendant would have a right to show that he had not converted the plaintiff’s property to his own use, but that what he had done about the same he had done under a legal process and lawfully. The legal effect of the record of the proceedings before the justice court, admitted under the general issue and notice, is, to show that the defendant had not unlawfully converted the plaintiff’s property to his own use, and that he had not at all converted it to his own use ; that what he had done in that behalf, he had performed as the minister of the law under the command of the law. The record of the proceedings of seizure, condemnation, and warrant of destruction, if regular and binding upon the status of the property, show that the plaintiff had forfeited and become divested of all property in that for which he has sued, and that in executing the warrant for its destruction, the defendant was not destroying, or converting to his use, the plaintiff’s property, but that, in the name and under the authority of the state, he was destroying that which had become forfeited to the state. Tf the proceedings before the justice bind the plaintiff, the defendant is not guilty of converting his property. The plaintiff claims that he is not bound by them, because he had no notice of them till after they were concluded. The proceedings were strictly in compliance with the provisions of the statute. They are in the nature of proceedings in rem, and if regular, fix the status of the property, and in that respect are binding upon all the world. All the notice required by the statute was given. The person to whose keeping the plaintiff had intrusted this property was notified. If he failed to appear to contest the adjudication of forfeiture, or to notify the plaintiff, so that he could appear for that purpose, the consequences of such failure must fall upon the plaintiff. It does not avoid the legality of those proceedings, or change the status of the property as fixed by that adjudication.

Again, the plaintiff claims that he should not be bound by that adjudication, because he says, and offered to prove, that the property sued for was not fit to clrink, and was valuable and intended only for vinegar. What is or is not jUt to drink, is an open question, on which all do not agree. He did not offer to show that it was in fact vinegar, or that it was a fluid or kind of property over which the justice of the peace would have no jurisdiction under the statute. The property was of that peculiar kind which falls within the scope^of the statute. The justice had jurisdiction of the subject-matter, and, as his proceedings were in strict compliance with the provisions of the statute, his adjudication must be held to fix the status of the propeity, and bind all parties interested therein. This being the legal effect of those proceedings, and the record thereof having been properly received in evidence, the court were correct in not allowing the plaintiff to impeach by parol testimony what was therein adjudicated. The holding of the County Court was not, in effect, that the defendant’s return on the warrant of seizure, if that stood alone, could not be contradicted by parol testimony, but that the facts stated in that return having been legally adjudicated by a court having jurisdiction of the subject-matter, the plaintiff could not be allowed by parol to impeach that adjudication. On this ground, the County Court probably rejected the various offers of testimony to which the plaintiff took exceptions.

Judgment affirmed.